ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00039310

Parties:

	Complainant	Respondent
Parties	Jimmy Bell	Ballymum Regional Youth Resource

Representatives

Mr Darach Mac Namara BL, instructed by Mr. Mark Dillon, Dillon Geraghty & Co Solicitors.

Board of Management members.

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00049900-001	26/04/2022

Date of Adjudication Hearing: 03/11/2023

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed as a Youth Worker by the Respondent from 13th November 2003 until 31st December 2021.

This complaint was received by the Workplace Relations Commission on 26th April 2022.

Summary of Complainant’s Case:

The TUPE Complaint.

1. The complainant commenced employment with the Respondent on 19th May 2011, employment was terminated on 31st December 2021.

2. The complaint against the Respondent under the 2003 Regulations will be pursued only if the complainant’s redundancy complaint is dismissed. If the redundancy complaint succeeds, however, it is acknowledged that the TUPE complaint falls away.

Summary of Respondent’s Case:

At the hearing of the complaint the Respondent’s representatives requested an adjournment of the hearing due to the late arrival of submissions from the complainant’s representative. This was the second request for an adjournment; an earlier request had been refused approximately one week prior to the hearing.

At the hearing the request for an adjournment was considered and refused by the Adjudication Officer (myself).

The Respondent did not present a submission to the hearing.

The Respondent did state that the reasons behind the termination of the Complainant’s employment was the withdrawal of funding from the HSE for 2022.

The Respondent sought legal advice and that advice was not to accept that this was a TUPE situation.

Findings and Conclusions:

The complainant’s employment was terminated on 31st December. Through the failure of the Respondent to recognise a transfer under 2003 Regulations a redundancy situation arises.

This complaint, CA – 00049900 – 001 (submitted under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003) therefore fails.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complainant’s employment was terminated on 31st December. Through the failure of the Respondent to recognise a transfer under 2003 Regulations a redundancy situation arises.

This complaint, CA – 00049900 – 001 (submitted under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003) therefore fails.

Dated: 13th December 2023

Workplace Relations Commission Adjudication Officer: Jim Dolan

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